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Today the Second Circuit issued an opinion vacating a 60-month illegal reentry sentence as both procedurally and substantively unreasonable.The opinion in United States v. Latchman Singh, No. 16-1111 (Kearse, Hall, Chin) (appeal from Forrest, J., SDNY), is available here. Judge Chin’s opinion touches on a number of recurring sentencing issues, and includes an important analysis of the distinction between presenting mitigating evidence and avoiding responsibility for one’s crimes.

Mr. Singh pleaded guilty to one count of illegal reentry after being removed following an aggravated felony conviction, see 8 U.S.C. § 1326(b). His record includes a number of convictions for non-violent offenses, several of which occurred more than a decade ago. The 15-21 Guidelines range for Mr. Singh’s sentence reflected a 3-level reduction for acceptance of responsibility. Prior to sentencing, he wrote a letter to the district court expressing remorse his actions and explaining the pressures that induced him to commit his past offenses. Construing this letter as an attempt to avoid responsibility for his crime, the district court sentenced Mr. Singh to 60 months’ imprisonment—a sentence nearly three times higher than the upper limit of his Guidelines range.

“[E]ven if Singh’s sentence does not shock the conscious,” the Court observed, “‘it at the very least stirs the conscious.'” Slip op. at 16 (quoting United States v. Aldeen, 792 F.3d 247, 255 (2d Cir. 2015). The Court accordingly determined Mr. Singh’s sentence to be substantively unreasonable. In doing so, the Court observed that the 60-month sentence “drastically exceeded nationwide norms.” Id. at 17. Relying on Sentencing Commission statistics, the Court noted that Mr. Singh “was sentenced to more than three times the nationwide average for all illegal reentry offenders, 57.2% of whom were in a higher [Criminal History Category]” than him. Id. at 18. The Court concluded that “[i]n the context of the Sentencing Commission’s statistics for illegal reentry cases and all the circumstances here, we are not persuaded, on this record, that the justification offered by the district court was sufficient to support the magnitude of variance.” Id. at 19.

As to procedural reasonableness, the Court noted that the district court’s sentence appears to have been predicated on a number of factual errors. Specifically, the district court was mistaken about the number of times Mr. Singh had been deported and reentered, and incorrectly observed that “he had spent the majority of his adult life back and forth” between Guyana and the United States. Id. at 20. The Court concluded that these “apparently erroneous views of the facts” appeared to influence the district court’s conclusion that Mr. Singh was “almost certain” to reenter. Id. Additionally, the Court concluded that the district court “may have overstated the[] seriousness” of Mr. Singh’s prior convictions in the course of determining that he was “extremely likely to commit additional crimes.” Id. at 21.

The Court took particular care to address the district court’s treatment of Mr. Singh’s apology letter. Mr. Singh explained in the letter that “had been acting foolishly and selfishly, under the influence of friends, when he committed his earlier crimes and that he had returned to the United States in part for fear of his life in Guyana.” Id. at 23. In light of these remarks, the district court considered declining to grant Mr. Singh an acceptance of responsibility deduction, but ultimately did so because it “did not want to create an appeal point.” Id. The district court nevertheless considered the remarks in weighing the § 3553(a) factors, and appears to have “imposed a substantive variance and punished Singh for trying to offer explanations for his conduct.” Id.

“If indeed the district court conflated Singh’s statements in mitigation with a failure to accept responsibility,” the Court wrote, “then it committed procedural error.” Id. at 23. The Court emphasized the defendant’s “absolute right to be heard at sentencing to offer mitigating circumstances.” Id. at 26 (quotation marks omitted). The Court explained that this endeavor is often consistent with acknowledging responsibility for wrongdoing, as it was in this case. See id. at 26-27.

Toward the conclusion of its opinion, the Court quoted the following passages concerning the qualities required of a prudent sentencing judge:

• “While there are many competing considerations in every sentencing decision, a sentencing judge must have some understanding of ‘the diverse frailties of humankind.'” Id. at 29 (quoting Woodson v. North Carolina, 428 U.S. 280, 304 (1976) (plurality opinion).

• “In deciding what sentence will be ‘sufficient, but not greater than necessary’ to further the goals of punishment, 18 U.S.C. § 3553(a), a sentencing judge must have a ‘generosity of spirit, that compassion which causes one to know what it is like to be in trouble and in pain.'” Id. (quoting Guido Calabresi, What Makes A Judge Great: To A. Leon Higgonbotham Jr., 142 U. Pa. L. Rev. 513, 513, (1993)).

• “‘Be kind. If we judges could possess but one attribute, it should be a kind and understanding heart. The bench is no place for cruel or callous people regardless of their other qualities or abilities.'” (quoting Edward J. Devitt, Ten Commandments for the New Judge, 65 A.B.A. J. 574 (1979).

N.B., The Federal Defenders of New York represents Mr. Singh. Congratulations to Colleen Cassidy, who litigated the case on appeal.